BALANON RAQUEL GURION v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1803/2019

[2024] HKCFI 2310

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1803 OF 2019

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Notice of Decision of the Director dated 17 July 2018 and the Decision dated 26 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The Notice of Decision is not amenable to judicial review as the decision has been appealed to the Board.[1] The application for judicial review of the Notice of Decision of the Director is therefore dismissed in limine.

2.  The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), she appeared before the Court on 8 July 2024

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 39, is a Filipino. She last arrived in Hong Kong as a visitor on 30 May 2015 and overstayed since 7 June 2015. The applicant surrendered to the Immigration Department on 8 July 2015 and made a non-refoulement claim on 3 August 2015. The claim was made on the basis that, if refouled, she would be seriously harmed or even killed by her ex-boyfriend.

5.  According to the applicant, she first met her ex-boyfriend in 2011. After dating him for four months, she decided to come to Hong Kong to work as a foreign domestic helper. Before the applicant left the Philippines in April 2012, she agreed to marry her ex-boyfriend upon return. Yet, she later found out that her ex-boyfriend and his family were indulged in gambling, so she began to keep a distance from him.

6.  Pending the commencement of her new employment contract, the applicant returned to the Philippines on 29 August 2012 and stayed there until 5 October 2012, during which she did not encounter her ex-boyfriend. Upon returning to Hong Kong, the applicant changed her contact number to avoid calls from her ex-boyfriend. However, he subsequently found out her new number from her younger brother and started to harass her over the phone, urging her to marry him.

7.  The applicant went back to the Philippines the second time in early 2015 upon termination of her employment and stayed at her brother’s home. After around five days, the applicant’s ex-boyfriend became aware of her return and went to look for her. When the applicant turned down his marriage proposal, he became furious and slapped her face. He left after threatening to kill the applicant if she married another man. The applicant did not report the assault to the police, nor did she seek any medical treatment for her injuries. Thereafter, her ex-boyfriend frequently came to look for the applicant at her brother’s house and the rest house that belonged to her sister-in-law’s family. She managed to hide from him by pretending that she was not in there.

8.  To avoid her ex-boyfriend, the applicant left the Philippines for Hong Kong on 14 May 2015. She went to Macau on 28 May 2015 and returned to Hong Kong on 30 May 2015, where she overstayed since 7 June 2015.

9.  The applicant maintained contact with her family while in Hong Kong. She was informed that her ex-boyfriend kept visiting her family demanding for her whereabouts and threatened to kill her if she married another man. The applicant had never sought help from the police because they would only work for people who bribe them or those with prominent background. She also considered internal relocation not viable because she lacked the financial support and she believed that her ex-boyfriend would be able to track her down anywhere within the Philippines.

10.  Details of the story of the applicant can be found in paragraph 9 of the Director’s Decision dated 17 July 2018 (“the Director’s Decision”).

The Director’s Decision

11.  The Director considered the applicant’s claim in relation to the following risks:

(a)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 2 risk”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

(c)  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”); and

(d)  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”).

12.  By way of the Director’s Decision, the Director dismissed the applicant’s claims. The Director found that: (i) the past behaviour of the applicant’s ex-boyfriend indicated that he had no real intention to seriously harm or kill her, so that her perceived risk of harm was merely speculative [14]; (ii) her delay in seeking non-refoulement protection showed that she was not in imminent danger [15]; (iii) state protection would be available to her [16]-[18]; (iv) internal relocation would be viable [19]-[20] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [21]-[26], Persecution risk [27]-[31] or Torture risk [32]-[34].

The Board’s Decision

13.  The applicant appealed the Director’s Decision to the Board. On 25 February 2019, the Board conducted an oral hearing.

14.  During the hearing, the applicant told the Board that her father passed away on 14 February 2019. Her ex-boyfriend came to the vigil and gambled with her family members. The applicant also clarified that the threat by her ex-boyfriend was made against her not to marry another man rather than her refusal to marry him [19].

15.  The Board noted that other than the single occasion when the applicant was slapped after she refused her ex-boyfriend’s marriage proposal, she had never suffered any ill-treatment. The threats by her ex-boyfriend would therefore probably be empty threats. Furthermore, there was also no evidence of state involvement in the matter. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [21]-[29], [40]-[49]. In any event, state protection and internal relocation would also be available according to the country of origin information [36]-[38], [50]-[55].

16.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

17.  The applicant has filed Form 86 on 28 June 2019 for leave to apply for judicial review of the Board’s Decision.

18.  In her affirmation in support of her claim, the applicant stated that:

(1)  the Board’s Decision was never read to her or translated to her and she did not understand it;

(2)  the adjudicator has exercised her case management wrongly;

(3)  the adjudicator was biased as he asked her employment plan, which she considers irrelevant; and

(4)  the adjudicator did not give her the chance to make comments on the country of origin information (“COI”).

DISCUSSION

19.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

20.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant complained that the Board did not accept her evidence. But she said that she was free to speak at the hearing.

21.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

22.  For the reasons given, the Board found that the ex-boyfriend’s threats were empty threats and he had no intention to harm her if she returns to the Philippines. It further found that state protection is available to her and internal relocation is viable for her.

23.  Those reasons under paragraph 18 are not valid grounds to challenge the Board’s Decision. That the Board’s Decision was not translated to her is not a valid ground for her application[2]. The applicant was at liberty to make comments before the Board as she confirmed before me that she was free to speak before the Board. The other grounds are only her personal opinions without any evidence in support.

24.  The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

25.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.